MALTA Law and Practice Contributed by: Ann Fenech, Adrian Attard, Lara Saguna Axiaq and Martina Farrugia, Fenech & Fenech Advocates
scription is discovered during or at the end of the voyage, the carrier would have to establish that the misdescription has actually caused damage to the carrier. 3.5 Time Bar for Filing Claims for Damaged or Lost Cargo The courts would apply the time limits for fil - ing claims for damaged or lost cargo in terms of the liability regime indicated in the Clause Paramount. If there is no Clause Paramount, the position is less clear. Regarding lost or undelivered cargo, Article 544I of the Commercial Code states that actions for the delivery of goods are time-barred by the lapse of one year from the arrival of the ves - sel. With respect to damaged cargo, there is no particular provision; consequently, if the claim is based in contract, it would attract a five-year time limit, and if the claim is based in tort, it would attract a two-year time limit. The extension of time bars is not a straightfor - ward issue. Some time bars can be interrupted, allowing time to start to run again; while others cannot be interrupted, even if the parties agree that these should be extended. The latter time bars are referred to as being “peremptory”. An example of a peremptory time limit is that previ - ously referred to relating to lost or undelivered cargo. Such a time limit may not be extended, even if by mutual agreement of the parties. 4. Maritime Liens and Ship Arrests 4.1 Ship Arrests Malta is not a party to any Arrest Convention, with ship arrests being governed solely by Mal - tese domestic law. Up until 2005, the grounds upon which a creditor could arrest a ship in rem
were the grounds upon which the courts in Malta could exercise jurisdiction in rem, as reflected in the UK Admiralty Court Acts of 1840 and 1861, which applied in Malta. In 2006, statutory amendments were enacted to revamp the grounds upon which the courts could exercise jurisdiction in rem and therefore arrest vessels as security in actions in rem. A new article was introduced into the COCP, which exhaustively listed all the maritime claims for which a creditor could seek to arrest a ship in rem in Malta. This list, found in Article 742B of the COCP, is based on the English Supreme Court Act of 1981 and the Arrest of Ships Con - ventions of 1952 and 1999. Under Maltese law, a creditor may seek to obtain a precautionary or an executive arrest. In the latter case, the creditor must already hold a judgment or other similar enforceable title. Con - versely, a precautionary arrest is issued when a creditor wishes to obtain security for a claim which has not yet been decided. An arresting party has a statutory timeframe of 20 consec - utive days from the date of the issuance of a precautionary arrest within which to institute proceedings on the merits before a competent court or tribunal. A creditor is also permitted to arrest a ship in Malta, either to secure a claim in personam or alternatively a claim in rem. In the former case, the vessel would be regarded in the same way as any other asset forming part of the debtor’s estate. In such circumstances, the arresting par - ty would need to ensure that the Maltese courts would be vested with jurisdiction over the debt - or, as enshrined in Article 742(1) of the COCP, which requires a direct connection or proximity to the territory of Malta or Maltese persons.
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